The
former director of a culinary program filed a complaint
alleging defamation by implication or innuendo and false
light invasion of privacy against an individual he claimed
was the source of statements made in a newspaper article. The
defendant moved to dismiss the complaint on the basis that
the statements were not actionable as a matter of law. The
trial court dismissed the complaint, and the former director
appealed. We affirm the trial court's judgment dismissing
the complaint and remand the issue of attorney's fees to
the trial court.

An
article was published in The Tennessean on March 2,
2016, that was titled, "Tennessee Flavors offers way to
eat, drink, aid cooking arts." Jim Myers was the author,
and he wrote about Tennessee Flavors, which he described as
"a food and drink throwdown with more than 75 vendors
from across Middle Tennessee" that served as "the
big kahuna fundraiser that benefits the culinary arts program
of Nashville State Community College." The relevant
portions of the article include the following:

I've written before about the dearth of qualified line
cooks in town, from our best restaurants to the hotels and
convention centers that need to feed the burgeoning throngs.
If you're willing to work hard, love food and cooking and
want a stable job, every kitchen door in Nashville will fling
open.

[Randy] Rayburn recognized this need every day in his
kitchens at the old Sunset Grill, Midtown Cafe and Cabana, so
he decided to do something about it by dedicating himself to
helping build the culinary arts program at what used to be
called Nashville Tech.

To honor him, the school named its new facility at the old
Hickory Hollow mall in Antioch The Randy Rayburn School of
Culinary Arts
(http://www.nscc.edu/programs/c/business-and-applied-arts/culinary-arts/)
at Nashville State Community College. However, Rayburn will
tell you it hasn't been easy. When he enlisted the help
of local restaurateurs and chefs to offer feedback on the
program and the quality of its graduates, the reports he got
back weren't flattering. The program was simply turning
out unqualified students.

Rayburn didn't flinch because a career of running
successful restaurants teaches you how to cut losses and move
on quickly. With his name on the building, he rolled up his
sleeves and decided to get more involved. He went back to his
dissatisfied cadre of chefs, including OGC (original gangsta
Chef) Deb Paquette of Etch, City House's Tandy Wilson,
Kim Totzka of the Turnip Truck, Edgar Pendley from Urban
Grub, barbecue honcho Pat Martin, John Stephenson of the
Family Wash and Max Knoepfel, executive chef of the Music
City Center, and asked for more help.

They started by cleaning house from the top by removing
director Tom Loftis. It was a politically inexpedient move
last year since Loftis was the brother-in-law of Bill Freeman
who was running for mayor at the time. If the election had
gone a different way, it might have affected funding for the
school.

Rayburn's group knew they needed fresh blood and launched
a nationwide search, eventually hiring Paul Brennen over more
than 50 other candidates. Today, the ship seems to be righted
and on a good course. There's scholarship money galore
for young, and older, students interested in the culinary
arts, and the new facility is a showplace.

The
plaintiff Thomas Nathan Loftis, Sr., is the "Tom
Loftis" referenced in Mr. Myers' article. Mr. Loftis
filed a complaint against Randy Rayburn on February 3, 2017,
asserting that Mr. Rayburn was liable to him for false light
invasion of privacy and defamation by implication or
innuendo. Mr. Rayburn filed a motion to dismiss the complaint
on February 24, and Mr. Loftis responded by moving to file an
amended complaint, which the trial court allowed. In his
amended complaint, Mr. Loftis alleged that the information in
the article came from Mr. Rayburn and constituted his spoken
words. Mr. Loftis claimed that Mr. Rayburn's "words
of self-aggrandizement portray Rayburn as the savior of
culinary arts from the incompetence of Plaintiff." Mr.
Loftis asserted that Mr. Rayburn's "boastful and
unseemly comments were reckless and made with a conscience
[sic] indifference to the truth." He further asserted
that Mr. Rayburn "intentionally and recklessly impugned
the competence and maligned the reputation of the Plaintiff
in order to embellish his own role in the Nashville culinary
community." According to Mr. Loftis, Mr. Rayburn's
words and conduct "caused Plaintiff great embarrassment,
humiliation and emotional distress. As a direct consequence,
Plaintiff has been unable to find comparable work in
Nashville, Tennessee."

Mr. Loftis described his false light cause of action as
follows:

Pursuant to an interview with Mr. Jim Myers of The
Tennessean, the Defendant Randy Rayburn spoke words that
were of and concerning the Plaintiff. The words spoken by
Rayburn were thereafter published by Mr. Myers in The
Tennessean article dated March 2, 2016. Mr. Rayburn
placed the Plaintiff before the public in a false light and
is therefore liable to the Plaintiff for invasion of his
privacy. The false light in which Plaintiff was placed would
be highly offensive to a reasonable person, in this instance
accusing the Plaintiff of incompetence and personally
responsible for alleged and unsubstantiated deficiencies of
unnamed persons. The tenor of the article and of Mr.
Rayburn's comments suggested that a list of well-known
local chefs unanimously agreed with this proposition, but
that was not true. The Defendant had actual knowledge of or
acted with reckless disregard to the falsity of the matters
asserted and the false light in which the Plaintiff was
placed.

Mr.
Loftis described his claim for defamation by implication or
innuendo as follows:

The publication complained of and the words of Rayburn
therein plainly implied that the lack of proper performance
by unidentified employees of unnamed chefs in restaurants or
as [sic] a consequence of the incompetence of the Plaintiff,
even though that statement was not literally made. When read
and construed in the sense in which a reader would ordinarily
understand it, the clear implication was that any failure of
a restaurant employee who had attended the school was the
fault of the Plaintiff.

Mr.
Loftis sought compensatory damages in the amount of $500, 000
and punitive damages in an amount up to $1, 000, 000.

Mr.
Rayburn moved to dismiss Mr. Loftis's amended complaint
asserting, inter alia, that the statements
complained of were not capable of defamatory meaning or
inference as a matter of law. The trial court held a hearing
on July 10, 2017, and it entered an order dismissing the
amended complaint on July 19, 2017, ruling that the
statements complained of were not defamatory and failed to
create liability as a matter of law. The court wrote:

1. The Plaintiff has filed claims for false light invasion of
privacy and defamation by implication or innuendo based on
statements contained in a newspaper article attached to his
Amended Complaint that was written by Jim Myers and published
by The Tennessean. The Plaintiff has alleged that
the statements contained in the article were spoken by the
Defendant.

2. Under Tenn. R. Civ. P. 12.02(6), the Court construes the
Plaintiff's Amended Complaint liberally in favor of the
Plaintiff, taking all allegations of fact as true, and will
deny the Defendant's Motion to Dismiss unless it appears
that the Plaintiff can prove no set of facts in support of
his claims that would entitle him to relief.

3. Under applicable law, the statements contained in the
article must be read as a person of ordinary intelligence
would understand them in light of the surrounding
circumstances; the Court is not bound by the Plaintiff's
interpretations of the statements contained in the article;
there is significant and substantial overlap between false
light and defamation; and whether any statement contained in
the article is capable of being understood as defamatory is a
question of law to be determined by the Court.

4. Applying these standards to the instant case, the Court is
of the opinion that the statements contained in The
Tennessean article are not capable of conveying a
defamatory meaning and that they do not give rise to
liability as a matter of law.

5. THEREFORE, the Defendant's Motion to Dismiss the
Plaintiff's Amended Complaint is GRANTED. The
Plaintiff's Amended Complaint, and each cause of action
therein, is hereby DISMISSED with prejudice for failure to
state a claim upon which relief can be granted.

Mr.
Loftis filed a notice of appeal followed by a notice that no
transcript or statement of evidence would be filed. Mr.
Rayburn then filed a notice that a transcript or statement of
the proceedings would be filed as part of the appellate
record pursuant to Tenn. R. App. P. 24(d). Mr. Rayburn asked
the trial court to assess Mr. Loftis for the cost of
preparing the transcript of the proceedings if the court
deemed a full transcript to be necessary. The trial court
issued an order on August 8, 2017, stating that "the
transcript of proceedings is necessary to convey a complete
account of what transpired at the hearing" and directing
Mr. Loftis to assume the expense of preparing the transcript.
Mr. Loftis filed a motion to alter, amend, and to set aside
the August 8 order regarding the transcript, which the trial
court denied.

On
appeal, Mr. Loftis raises the following arguments: (1)
whether Mr. Rayburn's public comments placed Mr. Loftis
in a negative and unfair light; (2) whether Mr. Rayburn
should have known that Mr. Loftis, as a reasonable man, would
be seriously aggrieved and offended by publicity suggesting
that pervasive incompetence among line cooks in Nashville was
directly attributable to him; (3) whether the trial
court's order dismissing the amended complaint should be
set aside for failure to rule upon the theories Mr. Loftis
advanced; (4) whether the order requiring Mr. Loftis to bear
the cost of the transcript should be reversed; and (5)
whether Mr. Rayburn should be sanctioned for characterizing
Mr. Loftis's attorney's statement at the hearing as a
judicial admission.

Mr.
Rayburn raises the following additional issues on appeal: (1)
whether he is entitled to attorney's fees pursuant to
Tenn. Code Ann. § 29-20-113; (2) whether he is entitled
to attorney's fees for defending against a meritless
claim for sanctions; and (3) whether Mr. Loftis's appeal
is frivolous within the meaning of Tenn. Code Ann. §
27-1-122.

II.
Analysis

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
trial court dismissed Mr. Loftis&#39;s complaint for failing
to state a claim for which relief could be granted.
See Tenn. R. Civ. P. 12.02(6). A motion to dismiss
is resolved "by an examination of the pleadings
alone." Webb v. Nashville Area Habitat for Humanity,
Inc., 346 S.W.3d 422, 426 (Tenn. 2011).[1] A defendant
filing a motion to dismiss "&#39;admits the truth of all
of the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to
establish a cause of action.&#39;" Id. (quoting
Brown v. Tenn. Title Loans, Inc.,328 S.W.3d 850,
854 (Tenn. 2010)). When ruling on a motion to dismiss, courts
are required to &#39;"construe the complaint liberally,
presuming all factual allegations to be true and giving the
plaintiff the benefit of all reasonable
inferences."&#39; Id. (quoting Tigg v.
Pirelli Tire Corp.,232 S.W.3d 28, 31-32 (Tenn. 2007)).
"A trial court should grant a motion to dismiss
&#39;only when it appears that the plaintiff can prove no set
of facts in support of the claim that would entitle the
plaintiff to relief"&#39; Id. (quoting
Crews v. Buckman ...

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